Amber M

After studying constitutional law, I have become all too familiar with the use of precedents. Precedent in laymen terms is simply a decision made prior to the one in question. Who ever is either upholding the precedent or deciding against it in latter is simply thinking one of the following: the precedent no longer applies, the precedent still stands, or the facts are not similar enough to reference this particular precedent. Llewellyn takes precedent and offers two different views, strict and loose. Of which he offers a more in depth look at the uses of the two views as well.

Strict view, as Llewellyn refers to is when the court does not reference a precedent. The precedent in question is undesirable to the judges; therefore the use of it is just as undesirable. Therefore, the court makes its own decision of the subject being brought before them. Loose view on the other hand is just the opposite. “…that is the view the court has decided, and decided authoritatively, any point or all points on which it chose after due argument, to pass…,” as Llewellyn describes loose view. The point here is that loose view is actually the idea that lawyers use to help predict the behavior of the courts. Under the loose view the use of precedent is most desired and on the contrary under strict view the use of precedent is least desired.

Plessey v. Ferguson (1896) when decided was a landmark for many years to come when questioning segregation. The decision made was, “separate but equal.” For many cases to come, the outcome remained the same, “stare decisis” or let the decision stand. It wasn’t until Brown v. Board of Education (1954) that the precedent from Plessey v. Ferguson was overturned and separate but equal was to be no longer, since separate but equal never really meant equal.

The previous point was made to illustrate the use of precedent and then the overturning of a precedent. Throughout my study of Con Law it was made clear that the Supreme Court never liked too, nor likes to overturn any previous ruling. I feel it is more along the lines of an ego problem; however that is just my personal opinion. Either way you look at it, there has not been many times where the court has overturned their own ruling. The court has however “amended” several rulings in order to make clearer their initial point. Precedent can be used for good, and for bad; it just depends what side of “the law” you are on.

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